On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-83-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, LeWinn and Coburn.
M.C.V. (Mary) and F.V. (Frank), husband and wife, are the natural parents of M.V. (Matt), born in 2002, and S.V. (Steven), born in 2004; Frank is not the natural father of J.V. (John), born in 1998, but he adopted the boy during the marriage.*fn1 Since March 2009, Mary and Frank have been in the throes of divorce litigation that includes a highly contentious custody battle.
On May 27, 2009, Frank filed an order to show cause under the matrimonial docket based on an incident that had occurred the previous day, when John reported to Frank that Mary had hit him with a belt. Frank called the Division of Youth and Family Services (DYFS), with whom the family had had prior involvement. The judge held a hearing on May 28; a Deputy Attorney General was present on behalf of DYFS, but did not enter a formal appearance. DYFS caseworker Genea Bullock testified as to her involvement with the family since April 2009. Bullock had interviewed John about the belt incident and, based on her interview, testified that DYFS's position was that Frank should be awarded temporary custody of the children.
At the conclusion of the hearing, the judge entered an order granting Frank custody of all three children "[o]n a temporary basis" and ordering that Mary's parenting time be supervised by her parents "subject to DYFS review."
Because Frank worked full-time, he needed assistance with caring for the children. His sister helped for a while but stopped due, in part, to John's behavioral problems. Frank then asked Mary's parents to take the children; starting in June 2009, Frank would see the children weeknights and weekends.
On November 16, 2009, DYFS filed a complaint for the care and supervision of the children, alleging abuse/neglect by both Mary and Frank. The same judge presiding over the parties' divorce litigation held a hearing under the FN docket, noting that there were "intricately intertwined issues." The judge entered an order under the FN docket placing the children under DYFS's supervision, requiring John to undergo a psychological evaluation, and permitting Frank unsupervised parenting time. Law guardians were appointed for the children; one law guardian represented John and another represented the two younger children.
On January 20, 2010, DYFS made an application to the judge to withdraw its FN complaint. DYFS noted that Mary and Frank were before the same judge in "a hotly-contested matrimonial case where the ultimate issue . . . is one of the custody of the children." DYFS posited that [i]f either of the parties deems . . . the children to be at risk of harm at the hands of the other, it's anticipated that they would bring an order before the [c]court seeking a protective order with regard to the children, which is the role typically [DYFS] serves in child protective services cases.
DYFS also "believe[d] that [its] presence in this case likely would antagonize two individuals who seem to be antagonized towards each other. . . . [A]nd [DYFS's] presence likely is not going to assist the [c]court in focusing on any issues."
The law guardian representing John noted that she had obtained an expert psychological report indicating that DYFS's intervention was no longer necessary and there was "no risk of harm at this point for . . . these children having unsupervised visitation with" both parents. The law guardian noted that John had expressed the desire for unsupervised parenting time with his mother and stated that, if the judge would not permit that, she would "object to [DYFS] getting out." The law guardian representing Matt and Steven had no objection to DYFS's request.
Mary also had no objection to termination of the FN litigation provided that she was permitted unsupervised parenting time. Frank agreed with DYFS's request but objected to giving Mary unsupervised parenting time based solely upon the report of the ...